Fuel to the Fire

Article 1, Section 8 of the U.S. Constitution says that Congress has the power:

To
promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their
respective writings and discoveries;

Back in 1790, the patent examiners who considered each application
were the secretary of state, the secretary of war, and the attorney
general. Receiving a patent was a notable honor, reserved for important
inventions.

In 1793, Thomas Jefferson defined the criteria to patent as

Any new and useful art, machine, manufacture or
composition of matter and any new and useful improvement on any art,
machine, manufacture or composition of matter.

Today, we say for an idea to be patentable, it must be:

Novel

Non-obvious

Useful

Patents made it possible for great inventors such as Alexander
Graham Bell, the Wright Brothers, and Thomas Edison to invest their
sweat and genius into expensive new creations. With a patent, an
inventor has the government’s guarantee that he can sell his innovation
for a limited time without competitors being able to copy the product.
After all, why spend money on R&D for new, innovative products if
knock-off companies can instantly copy them?

“The patent system added the fuel of interest to the fire of genius.”
—Abraham Lincoln

And then something happened. I don’t know exactly when, but patents
— especially software patents — have gone off the rails. It took 46
years to reach the 10,000th American patent, but today, there are more
than 10,000 patents granted every three weeks. Perhaps
patents could be given out as Cracker Jack prizes—after all, the US
Patent and Trademark Office already approves more patents per year than
boxes of Cracker Jacks sold at Dodger Stadium each year.

A notable change happened in 1991, when the U.S. patent office was
no longer funded by the general tax fund and had to start sustaining
itself entirely on fees from “customers.” This framed poster at the
patent office’s headquarters gives insight into the office’s mentality:

Our Patent Mission:To Help Our Customers Get Patents

The more patents, the more fees the patent office collects, and the
more innovations we stimulate, right? But what happens when big
corporations harvest thousands of patents for the sole reason of
locking out competitors? What happens when competitors have to merge
with each other to actually make anything? What happens when a cottage
industry of patent hoarders waits for the right moment to strike, then
demands that anyone who makes 3D games pay a tax? Or anyone who makes a
spreadsheet program?

Entrepreneurs are faced with a minefield of seemingly obvious things
they cannot implement out of fear of patent lawsuits. Meanwhile, IBM
was awarded 2,941 patents in 2005, marking its 13th straight year as
the #1 company in volume of patents (it had a much better year in 2004
with 3,248 patents).

Method of Exercising a Cat "A
method for inducing cats to exercise consists of directing a beam of
invisible light produced by a hand-held laser apparatus onto the floor
or wall or other opaque surface in the vicinity of the cat, then moving
the laser so as to cause the bright pattern of light to move in an
irregular way fascinating to cats, and to any other animal with a chase
instinct."

What in the world are all of these patents? It’s not exactly the
light bulb or steam engine these days. In 1991, Amazon’s CEO Jeff Bezos
patented the “1-Click buy” (patent number 5,960,411). That’s the
concept where a website already has your stored credit card info, so
you can click on a “buy now” button to buy it in one step. This
landmark patent was widely criticized, and Jeff Bezos responded by
saying that the patent system, as it stands, is broken.

If he didn’t patent this, his competitors would, and they’d use it against him. Bezos is “playing to win”
in the game of business, and I can’t fault him for that, but even he
pointed out that the rules of the game itself are broken and need to be
fixed.

Patents currently give the patent-holder a twenty-year
government-sanctioned monopoly. Twenty years might have made sense in
1790, but it certainly doesn’t in the realm of internet (or game)
technology. Bezos said that perhaps three years would be a more
reasonable number in the internet sector.